R.S.D. v. K.M.S., 2011 ABQB 266

Court of Queen ’ s Bench of Alberta Citation: R.S.D. v. K.M.S., 2011 ABQB 266 Date: 20110418 Docket: FL03 06280 Registry: Edmonton Between: R.S.D. Applicant - and - K.M.S. Respondent _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.M.

Ross _______________________________________________________ [ 1 ] This application regarding where an eleven-year-old girl (D.D.) should go to school has ended up being drawn out at some length, and I have taken over case management of this matter in the course of the application. [ 2 ] It originally came before me in morning chambers on Friday, August 27, 2010, only days before the school term was to begin. I was told that D.D. spent equal time with each parent, in a week on, week off pattern. She had gone to school for kindergarten through grade 4 in Sherwood Park, near her father’s home.

Her father, R.S.D., had recently moved to Millwoods. Her mother, K.M.S., brought the application, seeking to change D.D.’s school to a school in Leduc, near her mother’s home. R.S.D. also wanted to change D.D.’s school, to one in Millwoods close to his new home. The matter was somewhat complicated with the question of whether D.D. should continue to attend a French immersion school. In addition, both parents were ready to take on the bigger question of whether 50/50 shared parenting should continue.

R.S.D. suggested that, if D.D. went to school in Leduc, he would not be able to continue with the shared parenting regime because of the commute times involved in getting D.D. to school, and then traveling in the opposite direction to

get to his job in downtown Edmonton. He argued that D.D should go to school in his neighbourhood so that the shared parenting regime could continue. K.M.S. argued that she had supported the shared parenting regime for years by spending hours driving D.D. to school in Sherwood Park, and that R.S.D. should make the same effort. Alternatively, she indicated that she was more than ready to have D.D. stay with her full-time during the school week. [ 3 ] It seemed to me that the issue was presented largely as a question of what would be convenient for D.D.’s parents, rather than what was in D.D.’s best interests.

I resolved the matter for the time being by ruling that D.D. should stay in her old school in Sherwood Park until a proper determination could be made as to what, if any, change would be in her best interests. I also ruled that the parties and D.D. should attend on a Parenting Expert, pursuant to a Practice Note 7 Intervention Order.

I hoped that, as it seemed the status quo was not acceptable to either parent, they would be motivated to work out a mutually acceptable solution with the assistance of the Parenting Expert. [ 4 ] Unfortunately, the issue was not resolved and the parties came back before me in December 2010, with an ongoing dispute and a report from Melodie Sanford, a Registered Psychologist. Ms. Sanford recommended that D.D. transfer to a school in Leduc. [ 5 ] Ms. Sanford interviewed R.S.D. on two occasions in November 2010.

She noted that, while R.S.D. had initially wanted D.D. to change to a new school in Millwoods, he had decided that he preferred the status quo, and wanted D.D. to stay in school in Sherwood Park until the end of her elementary schooling (grade 6), since the school has a French immersion program, and D.D. had a settled routine there and had made friends there. He had no concerns about the programming at the school in Leduc (which also has a French immersion program), but did not think the commute was feasible for him. Ms.

Sanford visited R.S.D.’s new residence in Millwoods, where he and D.D. were living with his new partner and his partner’s two daughters, and formed the impression that this was an appropriate residence and that D.D. seemed to have settled in. R.S.D. told Ms. Sanford that he was willing to move back to Sherwood Park to be closer to D.D.’s school. Ms. Sanford did not think another move after such a short period of time would be in D.D.’s best interests. Ms.

Sanford timed the commutes to Leduc and downtown Edmonton from the Millwoods residence, and observed that “the additional distance, although not ideal, appears to be still within one hour of travel time and appears to be only an additional ten to fifteen minutes more than what he has been currently driving this fall.” [ 6 ] Ms. Sanford also interviewed K.M.S. and her partner, and visited their home in Leduc. Again she was of the view that the home was a suitable one for D.D. The Leduc elementary school is just a 10 minute walk from home.

K.M.S. wants D.D. to attend a neighbourhood junior high school in Leduc, and believes that the opportunity for D.D. to meet friends in Leduc before she starts junior high would make that transition easier for her. [ 7 ] Ms. Sanford also talked to D.D. about where she would like to go to school. D.D. ranked the Leduc school first, primarily because it is a “nut aware” school and has a milk program. She also wants to continue in French immersion, and would like to be able to walk to school and spend time with her older brother who lives in Leduc and would walk her to and from school.

D.D. put the Sherwood Park school as her second choice, and the Millwoods school as her third choice. Ms. Sanford observed that it appeared that D.D. had given the decision about switching schools a lot of thought, and that she knew she would have to get up early on the weeks that she stays with her father in order to get to school, and was willing to do this. D.D. told Ms.

Sanford that her father had told her that if she went to school in Leduc he did not believe she would be able to continue living with him every other week because of the commute, and that this made her sad because she would like to be able to attend school in Leduc and still live with her father every other week. [ 8 ] Ms. Sanford’s recommendation was that it would be in D.D.’s best interests that the week on/week off shared custody regime should continue, and that D.D. should go to school in Leduc. The programs at this school are consistent with the preferences of both D.D. and her parents.

It also offers the option of continuing on to a junior high school that is nearby. The Leduc school was preferred over the Sherwood Park school because it was close to one parent’s residence. R.D’s concerns about driving were felt not to constitute a bar to a continued shared parenting regime. However, Ms. Sanford recommended that, if there were a decision to change the shared parenting regime, that D.D. should live with the K.M.S., as the parent who resides closest to the school she attends. [ 9 ] K.M.S. brought an application on December 16, 2010 to have D.D. transfer schools in January 2011 (as Ms.

Sanford had recommended). R.S.D. objected on two primary grounds. First, since the interviews with Ms. Sanford, he and D.D. had moved back to the Sherwood Park area, so D.D. was now attending school close to his residence. He argued that Ms. Sanford’s reasoning and recommendation did not really apply in the changed circumstances. Second, he argued that a change in the middle of the school year would not be in D.D.’s best interests.

I agreed with the latter point, and advised the parties that I wanted a half day hearing set, to give both parties an opportunity to address the changed circumstances, and to give me an opportunity, with the parties’ consent, to speak to D.D. myself.

[ 10 ] That hearing took place on March 30, 2011. Both parties filed affidavits addressing the changed circumstances, and a fair bit of history, in advance of the hearing. As to changed circumstances, R.S.D. advised that he and D.D. had moved back to Sherwood Park because he had come to the conclusion that the living situation with his new partner and her daughters in a town house in Millwoods was too cramped and was not giving the three girls the privacy that girls of this age (10 to 13) need. They still spend time together and are considering getting a bigger house together.

They have considered various locations in Edmonton and also Beaumont. They are waiting to make decisions until D.D.’s school is sorted out. In the meantime, he and D.D. are living in a basement suite in Sherwood Park. He has a lease until August or December, depending on where D.D. goes to school. [ 11 ] I also had an opportunity to speak to D.D.

As I told the parties and D.D., I just wanted to get to know D.D. a little, and would not be recording or reporting her conversation with me. [ 12 ] As I also told the parties, I had in the meantime an opportunity to review the file, which dates back to 2002 and includes at least 15 court orders, and the applications and supporting materials relating to them. That background provides, in my view, important context for this application. [ 13 ] D.D.’s parents separated in September 2002 when she was less than two years old.

On November 2, 2002, by consent order, R.S.D. was granted guardianship of D.D. and access every weekend, with alternating three and four day weekends. On December 12, 2002, Fraser J. ordered that her parents should have interim joint custody of D.D., and that Gordon Rowe, Consulting Clinical Psychologist, should undertake an assessment and make a recommendation to the court regarding custody and access. [ 14 ] There was some delay in the commencement of the assessment, and it was not completed until February 18, 2004, when D.D. was four years old. Mr.

Rowe reviewed the parties’ history, their former and ongoing relationship with each other and with D.D. and their living circumstances. Home visits were conducted and psychological tests administered. Mr. Rowe concluded that both parents loved D.D. and were committed to raising her and being involved in decision-making for her, both had adequate capacity to relate appropriately to D.D. in all respects, and D.D. was “emotionally balanced” toward both and enjoyed her time with each of them. She appeared happy, safe and secure with either parent. [ 15 ] Mr.

Rowe commented that the parents had some “power/control issues” although he would not classify them as a “high conflict” couple. He noted that it is not unusual for separated parents to “have their differences with each other”. On the positive side, he commended both parents “for not over-exposing their daughter to their parental and verbal disputes”. He added that while each parent could be rather “nitpicky” with complaints about the other, this appeared to be a situation of “the pot calling the kettle black”. [ 16 ] Mr.

Rowe recommended that the Court consider a 50/50 week on/week off shared living plan for D.D. If such a plan were to be adopted, he recommended that it be implemented as soon as possible so D.D. would be well adjusted to it by the time she started school. If for some reason the Court deemed the 50/50 arrangement not suitable, the Court might consider an alternate arrangement with one parent maintaining the primary residence and the other having D.D. for extended alternate weekends. Mr. Rowe did not specify which parent should maintain the primary residence. [ 17 ] Mr.

Rowe also included the following advice for R.S.D. and K.M.S.: The parents should become aware that psychological research over the years has clearly established that long-term ongoing conflict between caregivers can have a serious detrimental impact on the emotional health and development of children. Therefore I encourage [R.S.D.] and [K.M.S.] to continue with the “good job” they are doing in not over-exposing their daughter to the adult issues and continue showing respect to the other parent in front of her.

The parents should “put aside their differences”, get on with their lives and focus on [D.D.’s] development rather than their own animosities and disagreements. It is important for the parents to encourage each other’s involvement with their daughter. It is important for children as they grow to have parents who are devoted to their care and able to communicate about them to each other.

Finally, given the nature of children’s changing development and desires over time, the parents should keep an “open mind” to the notion that their daughter’s needs and desires regarding her living arrangement with her parents could change in the years to come. [ 18 ] On November 30, 2004, by order of Clarke J., the week on/week off shared parenting regime recommended by Mr. Rowe was put into effect. This was an interim order, resulting from an application, not a trial. Nonetheless, it has now been in effect for over six years.

[ 19 ] Things have not always gone smoothly. In September 2005, Slatter J. ordered that the shared regime continue, that the parents meet with a teacher to determine whether D.D. was ready for kindergarten, that K.M.S. ensure that D.D. was driven to kindergarten, and that a trial date be set as soon as possible. [ 20 ] The trial did not proceed. Other applications were heard in October 2005, February 2006, December 2006, August 2009, dealing with issues such as school contact arrangements, child support and holidays.

In their affidavits filed on this application, the parties reviewed a number of their grievances with each other reflected in these court applications, as well as disagreements about other issues, such as D.D.’s extracurricular activities. [ 21 ] I have decided to accept Ms. Sanford’s recommendation with regard to D.D.’s schooling, to take effect at the beginning of the next school year in September 2011. In my view the changed circumstances, that R.S.D. and D.D. have moved back to Sherwood Park, are not sufficiently stable to undermine the rationale for Ms. Sanford’s recommendation, which I accept.

Of the three schools considered for D.D., one, that in Leduc, has the programming that is important to D.D. and her parents and is in the neighbourhood of the established residence of one of her parents. While R.S.D. has moved back to Sherwood Park at this time, he and D.D. are living in leased premises on a temporary basis, and he is seriously considering a move to another part of Edmonton or Beaumont with his new partner and her daughters. R.S.D.’s life is going through a period of some instability.

This is certainly understandable in the circumstances, and he is clearly making real efforts to make sure that D.D. continues to have a comfortable place with him. That is to be commended. Nonetheless, the parent who can offer D.D. the greatest sense of stability and security at this time is K.M.S. As D.D. will soon be facing the challenges of a move from elementary school to junior high, I agree with Ms. Sanford that stability and the opportunity to develop a good social network are very important, and she should attend a school where she has the option of continuing on to a junior high school nearby.

As to R.S.D.’s concerns about commuting time, since he is planning to change his residence in any event, he can take this into account when he decides where his new home will be. I am sure he will come up with a solution that will ensure that the shared parenting regime can continue. [ 22 ] I have set out some of the history of this matter, and Mr. Rowe’s comments as a reminder to R.S.D. and K.M.S. about what is important. In my view, Mr. Rowe’s recommendation has worked out well for this family.

Six years later, D.D. is still “emotionally balanced” and appears happy, safe and secure with either parent. [ 23 ] However, Mr. Rowe’s comments about the issues between R.S.D. and K.M.S. and his caution to them are as true today as they were in 2004. The parents’ submissions on this application make it clear that they continue to have “power/control issues” although I agree that they should not be classified as a “high conflict” couple. R.S.D. and K.M.S. still have“nitpicky” complaints about each other, each making similar complaints and each with little evidence of self examination.

This is still a situation of “the pot calling the kettle black”. For example, they both complain that the other is overly controlling. They also both complain that the other intimidates D.D. Ms. Sanford expressed no concerns about this. I certainly did not observe any evidence that D.D. is intimidated by either parent during my meeting with her. I expect she is influenced by both, perhaps one more than another at particular times in her development. I also expect that will change as she develops. As Mr.

Rowe said, D.D.’s parents should keep an “open mind” to the notion that their daughter’s needs and desires regarding her living arrangement with her parents could change in the years to come. [ 24 ] In one aspect, the situation has deteriorated somewhat since Mr. Rowe’s report. At that time, the parents were commended for not over-exposing D.D. to their disputes. Of course, she was only four years old then. Now that she is eleven, it seems to me that both parents are involving her more than they should in their disputes.

K.M.S. introduces D.D. to proposed changes in school and activities before discussing these things with R.S.D. For his part, R.S.D. has told D.D. that he did not believe she could continue to live half time with him if she went to school in Leduc. As noted by Ms. Sanford, this made D.D. sad because she would like to be able to attend school in Leduc and still live with her father every other week. D.D. should not be subjected to this kind of pressure, especially where it is clear that her father can accommodate a change in D.D.’s schooling. [ 25 ] R.S.D. and K.M.S. need to remember Mr. Rowe’s advice.

Long-term ongoing conflict between them can have a serious detrimental impact on D.D.’s emotional health and development. Now more than ever, they need to put aside their differences and focus on D.D. rather than their own disputes. D.D. is lucky to have two parents who both love her and put her at the centre of their lives.

As she approaches the challenges of the teenage years, it is especially important that D.D.’s parents learn to communicate about her to each other, with her interests, and not their own disagreements, constantly kept to the forefront. [ 26 ] In conclusion, K.M.S.’s application to have D.D. commence attending their chosen school in Leduc is granted, to commence with the new school term in September 2011. No change is made with respect to the 50/50 shared parenting regime, on the assumption that R.S.D. will accommodate this change.

Heard on the 30 th day of March, 2011. Dated at the City of Edmonton, Alberta this 18 th day of April, 2011. J.M. Ross J.C.Q.B.A. Appearances: R.S.D. (Applicant) Self-Represented Litigant K.M.S. (Respondent) Self-Represented Litigant